Research › Search › Judgment

Punjab High Court · body

2024 DIGILAW 1064 (PNJ)

Pal Singh (Deceased) v. Ashok Kumar Jain

2024-07-15

ANIL KSHETARPAL

body2024
JUDGMENT Anil Kshetarpal, J. (Oral) SAO-100-2017 In this second appeal against order, the defendants assail the correctness of the First Appellate Court's order remitting the matter back to the trial Court for fresh decision. 2. On a perusal of the impugned order, it becomes evident that the Court found that the suit property comprised in Plot No.238 and 239 are situated in different 16 biswas area as compared to 10 biswas area and the same khasra number. The Court also found that clarity on this aspect can be brought about by appointing a local commissioner. The First Appellate Court's also held that the following additional issues are required to be adjudicated:- "1. Whether there exists a Boundary Wall fitted with a Gate over plots No. 238 and 239, i.e. Suit Property? OPP 2. Whether the Suit Property comprises 16 Biswas area recorded in the Revenue Record in the possession of co-owners, which is different to the 10 Biswas area of same Khasra No. 898, wherein the name of defendant appears in the Column of Possession? OPP 3. Whether M/S Dhir & Company has sold the Suit Property/Plots to the plaintiff out of the 10 Biswas area of Khasra No.898 min wherein the name of defendant No.1 is recorded in the Column of Possession? OPD No. 1." 3. In attached CR-3727-2018, the plaintiff assails the correctness of trial Court's order passed on 17.05.2018, while dismissing his application for permission to amend the plaint in order to seek alternative relief of possession. This order has been passed after the matter was remitted back by the First Appellate Court to the trial Court. 4. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook. 5. The learned counsel representing the appellant in SAO-100- 2017 submits that the First Appellate Court has committed error in remitting the matter back to the trial Court for fresh decision. She submits that the enabling power under Order XLI Rule 23 A of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') requires the First Appellate Court to set aside the judgment of the trial Court while forming opinion that retrial of the case is necessary. 6. She submits that the enabling power under Order XLI Rule 23 A of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') requires the First Appellate Court to set aside the judgment of the trial Court while forming opinion that retrial of the case is necessary. 6. Per contra, the learned counsel representing the respondent in SAO-100-2017 submits that the trial Court will have the benefit of report of local commissioner as well as findings on various other issues, which have been framed. 7. Hence, this Court should not interfere in the matter. 8. In SAO-57-2023, titled as "Abdul Quddoors v. Ajit Singh (since deceased) through legal representatives and another", decided on 08.01.2024, this Court has examined the scope and enabling power of the Appellate Court to remand the case back to the trial Court, which reads as under:- "3. From the reading of the order passed by the First Appellate Court, it is evident that the Court has found that in para Nos. 23 and 24 of the trial Court judgment, the onus was wrongly shifted on the defendants and the First Appellate Court allowed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). In fact, the scope of Order XLI Rule 23 and 23A CPC has been explained by the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686 , in the following manner:- "10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila AIR 1965 SC 364 at p. 399, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided." 4. The learned counsel representing the respondent No.1 submits that the Supreme Court, in Shivakumar and Others v. Sharanabasappa and Others (2021) 11 SCC 277 , has held that in appropriate cases, it is permissible for the Appellate Court to remand the case back to the trial Court. In Shivakumar's case (supra), the Court has held that the power of remanding the case back to the trial Court is required to be exercised sparingly and in the exceptional cases. It should not be exercised in routine. The Appellate Court can remand the case back to the trial Court either under Order XLI Rule 23 or 23A CPC. Order 23A provides that the Appellate Court can only remand the case back to the trial Court if the decree is reversed in appeal and retrial of the case is considered necessary. The First Appellate Court has all the powers to record additional evidence or seek report from the trial Court after framing an additional issue or allowing the application for additional evidence. Efforts should always be made by the Appellate Court to decide the case on merits, rather than remanding the case back to the trial Court because it entails delay and the decree, which has been passed, is set aside without going deep into the matter." 9. Efforts should always be made by the Appellate Court to decide the case on merits, rather than remanding the case back to the trial Court because it entails delay and the decree, which has been passed, is set aside without going deep into the matter." 9. In view of the aforesaid declaration of law, the matter can be remitted back by the Appellate Court to the Lower Court under Order XLI Rule 23A only after the judgment of the Lower Court is set aside on merits and retrial of the case is considered necessary. The First Appellate Court is a Court of law and fact both. It can appoint a local commissioner and permit the parties to lead additional evidence. It can also seek report from the trial Court under Order XLI Rule 25 of the CPC. 10. Keeping in view the aforesaid facts, the impugned order is not sustainable because the First Appellate Court has not fulfilled any of the two requirements of Order XLI Rule 23 and 23A of the CPC. 11. Consequently, the impugned order is set aside and the first appeal is restored to its original number. 12. With these observations, the appeal is disposed of accordingly. 13. The parties through their learned counsel are directed to appear before the First Appellate Court on 09.08.2024. 14. Needless to observe that this Court has not expressed any opinion on the merits of the case, hence, the First Appellate Court shall have liberty to form its independent opinion. CR-3727-2018 15. The revision petition is rendered infructuous, however, since the application has already been filed before the trial Court, which has been dismissed, therefore, the same is formally set aside with liberty to the First Appellate Court to decide the application afresh. 16. All the pending miscellaneous applications, if any, are also disposed of.